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is no case where money has been actually paid by one certainly to be required that the surety deal fairly of two parties to the other upon an illegal contract, and plainly with the creditor and give him to know both being particeps criminis, where an action has been that he intends to put him upon his equitable duty. maintained to recover it back.” It is said in Cro. Jac. The notice to the creditor should clearly inform him 187, that "a man shall not avoid his deed by duress of that he is required to take proceedings in the courts to a stranger." This rule was applied in Robinson v. enforce the mortgage. Singer v. Troutman, 49 Barb. Gould, 11 Cush. 57, where a surety sought to plead the 182, citing Remsen v. Beekman, 25 N. Y. 552. Judgduress of his principal. The rule has been modified ment affirmed. Hunt v. Purdy et al., appellants. so as to allow a father to plead tho duress of his child, Opinion by Folger, C. J. or a husband the duress of his wife, or a child that of [Decided Nov. 9, 1880.] his parent. Wayne v. Sands, 1 Freeman, 161; Bayley

TRADE-MARK — “RYE AND Rock" TO DESIGNATE v.Clare, 2 Browne, 276; 1 Rolle's Abr. 687; Jacobs' L.

MIXTURE OF RYE WHISKY AND ROCK CANDY NOT.-It Dict., “Duress." Plaintiff, iu tho case at bar, was in

is a rule in the law of trade-marks that the use of any pari delicto with defendants, being only remotely re

name or symbol as a trade-mark must be new to make lated by marriage to the debtor. Plaintiff cannot

an exclusive right to use it as such. If the term has complain that defendants negotiated tho note so as to

ever before been used as applicablo to a like article, it sbut out the equities, as the words of negotiability

cannot be exclusively appropriated. It is also a rule therein show that its negotiation was contemplated

of that law that if the article is known to commerce when it was given. Judgment affirmed. Solinger, in general by the term claimed as a trade-mark, the appellant, v. Earle. Opinion by Audrews, J.

claim is ill-founded. It is also a rule that if the term [Decided Nov. 9, 1880.]

employed indicates the nature, kind or quality of the STATUTE OF LIMITATIONS — BEGINS TO RUN ON article, instead of showing the origin of it, au exCHECK AT TIME OF MAKING IF DRAWER HAS NO FUNDS clusive right to the use of the term may not be mainWITH DRAWEE.-Defendant gavo a check upon a bank tained. Plaintiff claimed as a trade-mark the words where he had no funds at the timo or for more than “Rye and Rock," to designate as a beverage a mixture six years thereafter. The check was not presented for of white rock candy dissolved in rye whisky, and payment until ten years after it was made. Ileld, alleged that plaintiff had for ten years used the words that the statute of limitations began to run at the to designato the mixture; that in 1877 defendants time the check was made, and an actiou thereon began to use the same words to designate a like mixagainst the maker was barred after six years. The ture; that in 1878 the commissioner of patents granted rule is well established that if the drawer has no funds plaintiff's application for a trade-mark in the words in the hands of the drawee, an action can be main- Rye and Rock," etc. IIeld, that under the rules tained against the former without presentment or above mentioned, plaintiff was not entitled to claim as notice of non-payment. Mohawk Bank v. Broderick, a trade-mark tho words mentioned to designate the 10 Wend. 304; Fitch v. Redding, 4 Saudf. 130; Ilealy mixture pamed. Judgment affirmed. Van Beil, apv. Gilman, 1 Bosw. 235; Johnson v. Bank of North pellant, v. Prescott et al. Opinion by Folger, C. J. America, 5 Robt. 554. The circumstance that the want [Decided Nov. 9, 1880.] of funds was the result of the fraudulent act of the

WILL - CONSTRUCTION — DEVISE TO WIFE WITH DISdrawer would not estop him from setting up the de

CRETION TO DEVISE TO CHILDREN GIVES HER FEE.-A fense of tho statute. In such a case the check is due

will read thus, “I do give and bequeath all my propwithout presentment and demand. The breach of the

erty, both real and personal, to my beloved wife Mary, contract is the cause of the action, and the statute

only requesting her at the close of her life to make begins to run from the time of such breach even if

such disposition of the same among my children and there is fraud on the part of the defeudant. East

grandchildren as shall seem to her good." Held, that India Co. v. Paul, 1 Eng. L. & Eq. 44, 49; Battley v.

the wife took the testator's estate in fee and that the Faulkner, 3 Barn. & Ald. 288; Whitehouse v. Fellowes, qualifying sentence would not be construed to create 100 Eng. C. L. 795; Wilkiuson v. Verity, L. R., 6 C.

a trust. The tendency of modern decisions is not to P. 206. Order affirmed. Brush, appellant, v. Barrett.

extend the rule or practice which from words of doubtOpinion by Miller, J.

ful meaning deduces or implies a trust. 2 Story's Eq. [Decided Nov. 9, 1880.]

Jur., $ 1069; Lamb v. Eames, L. R., 10 Eq. Cas. 267. In SURETYSHIP


doctrines set forth in tho cases or text-books are sub-F., who stood in the relation of a surety for the pay

ject to the rule in Williams v. Williams, 1 Sim. (N. S.) ment of a bond and mortgage not due, told plaintiff 358, that “the real question always is whether the wish who held the mortgage, in January or February, to

or desire or recommendation of the testator is meant ' collect that mortgage in the spring and not let it run

to govern the conduct of tho party to whom it is adover the time it is due.” There was nothing due and

dressed, or whether it is merely an indication of that payable until the 23d of May in that year. Held, uot

which he thinks would bo a reasonable exercise of the a sufficient notice to plaintiff to release F. from lia

discretion of tho party, leaving it, however, to the bility where plaintiff neglected to foreclose when the party to exercise his own discretion.” This rule is apbond and mortgage becamo due. Plaintiff might well plied and illustrated in Bernard v. Minshell, Johns. have understood defendant to mean that when the

Ch. (Eng.) 276, and in Howarth v. Dewell, 6 Jur. (N. boud became payable payment should be asked, for be S.) 1360, where a devise by a testator of all the residue was not forced by the words used at the time when

of his property, real and personal, to his wife, with they were used to understand that collection by legal

power to dispose of tho same among his children in proceedings was meant. The doctrine that a surety

her discretion, was held au absolute gift to the wife. may give the creditor notice to proceed against the

In Hutchinson v. Tenant, supra, testator gave all his principal, and if the latter refuses, to the damage of

property to his wife “absolutely with full power to the surety, the obligation of the surety is discharged

her to dispose of the same as she may think fit for the or diminished, is not a favorite in the law and is not

benefit of my family, having full confidence that she accepted in all forums. 3 Kent's Com. 124, note c. It

will do so." The court said: “ Both on principle and

in consonance with the most modern authorities, I dewas against opposition that it was adopted into the law

cide that the widow took absolutely." Judgment of this State. See King v. Baldwin, 17 Johns. 384, 390, affirmed. Foose, appellant, v. Whitmore. Opinion by 394, 396, 397, 402; Colgrove v. Tallman, 67 N. Y. 95, 99. Danforth, J. It is not one that is to be applied with laxity. It is 1 [Decided Nov. 9, 1880.]

able time after the trial is over. U. States v. BreitUNITED STATES SUPREME COURT AB

ling, 20 How. 234; Stanton v. Embry, 93 U. S. 555; STRACT.

Dredge v. Forsythe, 2 Black. 568; Genesee v. Bonua

mer, 7 Wall. 565. (2) Defendants sued out this writ of PATENT

error before the signature of the judge to their excep- RE-ISSUE BY COMMISSIONERS MUST BE FOR SAME INVENTION.-Under the statute in force in 1869

tions was obtained. Held, that they did not thereby and 1870, the commissioner of patents had autbority

waive their exceptions. See Taylor v. Williams, 2 B. to grant re-issues only in certain specified cases. These

& Ad. 846; S. C., 6 Bing. 512, and 4 M. & P. 257. A were whenever a patent was inoperative or invalid by

contrary rule is not settled in England; nor is it asreason of a defective or insufficient specification, or by

serted in this country save in one New York decision. reason of the patentee's claiming as his own invention

Seo Brown v. Bissell, 1 Doug. (Mich.) 273; also Witbeck or discovery more than he had a right to claim as new,

5. Waine, 8 How. Pr. 433. (3) The bills were not sigued if the error had arisen by inadvertence, accident, or

nunc pro tunc, but appeared on their face to have been mistake, without any fraudulent or deceptive inten

signed ten days after tho trial. Held, not an objection. tion. The commissioner was invested with authority

The date of the signature was at most an irregularity. to determine whether the surrendered patent was

Dictum to the contrary effect in Walton v. United valid by reason of a defective or insufficient specifica

States, 9 Wheat. 657, disapproved of. See Ex parte tion, or because the patentee had claimed more than

Bradstreet, 4 Pet. 107; Neece v. Healey, 23 Ill. 416; he had a right to claim as new; and if he found such

Illinois R. Co. v. Palmer, 24 id. 416; Dean v. Gridley, 10 to be the case, and found also that the error had been

Wend. 254; Hollowell v. Hollowell, 1 Monroe, 130; due to inadvertence, accident, or mistake, without

Hughes v. Robertson, id. 215. (4) A witness called to fraud, his decision was conclusive, and not subject to

prove the location of private lands was allowed to tesreview by the courts. But the law did not confer tify that one M., a surveyor, had, while absent from the upon him jurisdiction to grant a re-issue embracing

lands in question, told him tho location and direction new matter, or a broader invention than what was

of certain boundary lines which M. said to witness he revealed by his original specification, or drawings, or

(M.) had surveyed, and witness was allowed to state models, except in some cases where there was neither

what the declarations of M. were. Held error. Ellimodel nor drawiug. A re-issue for any thing more was

cott v. Pearl, 10 Pet. 412; Bartlett v. Emerson, 7 Gray, therefore inoperative and void. Accordingly this

74; 5 Metc. 223; Long v. Cotton, 116 Mass. 414; Bender court has repeatedly held, that if on comparing a re

v. Pierce, 27 Penn. St. 335. The conclusions to which issue with its original, the former appears on its face

a great majority of the decisions of State courts lead to be for a different invention from that described or

upon this subject is this: In questions of private indicated in the latter, it must be declared invalid.

boundary, declarations of particular facts, as distinSeymour v. Osborn, 11 Wall. 544; Russell v. Dodge, guished from reputation, made by deceased persons, 93 U. S. 461. In this case in the issue of an original

are not admissible, unless they were made by persons patent for improvements in ovens, it appeared by the

shown to have had kuowledge of that whereof they specifications that the products of combustion were

spoke, or persons on the laud, or in possession of it carried on their way to the chimney through flues ex

when the declarations were made. To be evidence, terior to the oven proper and could not pass through it.

they must have been made when the declarant was In the re-issue the specifications showed that the pro

pointing out or marking the boundaries or discharging ducts of combustion passed through the oven. Held,

some duties relating thereto. A declaration which is a different invention, and the commissioner had po

a mere recital of something past is not an exception authority to grant a re-issue of the patent. Decree of

to the rule that excludes hearsay evidence. The Texas U. S. Circ. Court Louisiana affirmed. Ball et al., ap

decisions do not essentially vary this rule. George v. pellants, v. Langles et al. Opinion by Strong, J.

Thomas, 16 Tex. 74; Blaythe v. Sutherland, 3 McCord, [Decided Nov. 15, 1880.]

258; Stroud v. Springfield, 28 Tex. 649; Spear v. Coate,

3 McCord, 229; Weller v. Carroll, 29 Tex. 333; Evans PRACTICE – TIME WHEN JUDGE MUST SIGN EXCEP- v. Hunt, 34 id. 111; S. C., 49 id. 311; Smith v. Russell, TIONS — WRIT OF ERROR BEFORE EXCEPTIONS SIGNED 37 id. 247. (5) While when a person enters upon unNO

SIGNATURE - EVIDENCE- occupied land, under a deed or title, and holds adPROOF OF BOUNDARY LINES BY REPUTATION -STATE- versely, his possession is construed to be co-extensive MENTS BY DECEASED PERSONS - ADVERSE POSSESSION with his deed or title, and the true owner will be — TRUE OWNER IN POSSESSION OF PART OF LOT.-(1) deemed to be disseized to the extent of the boundaries The rule requiring the presentation of bills of excep- described in that title, still, his possession beyond the tion for the signature of the judge within five days is limits of his actual occupancy is only a constructive not a rule which coutrols his action. He may depart one. If the true owner be at the same time in actual from it in order to effectuate justice. Stanton v. possession of part of the land, claiming title to the Embry, 93 U. S. 552. It is a direction to the parties whole, the constructive possession is in him of all the and it expressly reserves the power to enlarge the land not in the actual possession of the intruder, and time. It is no doubt necessary that exceptions should this though the owner's actual possession is not within be taken, and at least, noted before the rendition of the limits of the defective title. “The reason is plain. the verdict, but the reduction of the bills to form, and Both parties canuot be seized at the same time by the the signature of the judge to the bills, required for same land under different titles. The law therefore their attestation, or as said in the statute of West- adjudges the seizure of all that is not in the actual ocminster, " for u testimony,may be afterward, during cupancy of the adverse party to bim who has the better the term. In practice it is not usual to reduce bills of title." Clarke v. Courtuey, 5 Pet. 354. In Altemus v. exception to form and to obtain the signature of the Long, 4 Peun. St. 254, it was ruled that though actual judge during the progress of the trial. Nor is it neces- possession under a junior title of part of a tract of sary. The statute of Westminster did not require it. land, which interfered with an older grant, gave posIt would greatly and uselessly retard the business of session of the whole to the holder of the junior title, courts were it required that every time an excep- yet a subsequent entry of the true owner upon any tion is taken the progress of the trial should be stayed part of his land was an ouster of the intruder from until the bill could be reduced to form and signed by what he had in constructive possession merely. There the judge. For this reason it has always been held is no authoritative decision that is in conflict with that the exception need only be noted at the time it is this. Judgment of U. S. Circ. Ct., W. D. Texas, remade, aud may be reduced to form withiu a reason- versed and new trial granted. Hunnicut et al., plaint






iffs in error, v. Peyton et al. Opinion by Strong, J. the deed L. was granted expressly the privilege of [Decided Nov. 15, 1880.]

alienating this right. To utilize this water he conTRIAL- EXCEPTIONS ON.--Where a counsel at trial

structed a tank cistern and bath-room in the said asked of the court to give a charge, consisting of four dwelling-house which were supplied with the water. propositions, which were set out, and “which instruc

He also used it in irrigating the land. L. thereafter tions,” according to the bill of exceptions, “the co

conveyed the land to another, through which conveyrefused to give," and the counsel excepted, held, that

ance plaintiff acquired title thereto. Subsequently according to the well-settled rule of this court, if

L. conveyed to T. the water right. Held, that the either of these four propositions were erroneous, or in right to water was appurtenant to the land at the other words, if all tho charge thus asked was not sound

time L. conveyed it, and passed to his grantee, and law, the court did right in refusing the prayer which

defendant had no right to deprivo plaintiff of water. presented them as a whole. See Johnson v. Jones, 1

Appurtenauts may be of a corporeal or incorporeal

nature. Jackson v. Stryker, Johns. Ca. 284. In Black, 120; Harvey v. Tyler, 2 Wall. 338; Lincoln v. Claflin, ñ id. 139; Brown v. Taylor, 93 U. S. 54.

Nicholas v. Chamberlain, Cro. James, 121, Croke says: Judgment of U. S. Circ. Ct., W. D. Tennessee, affirmed. “It is held by all the court, upon demurrer, that if United States v. Hough et al. Opinion by Miller, J.

one erects a house, and builds a conduit thereto in an[Decided Nov. 15, 1880.]

other part of his land, and conveys water by pipes to the house, and afterward sells the house with the ap

purtenances, excepting the land, or sells the land to KANSAS SUPREME COURT ABSTRACT.

another, reserving to himself the house, the conduit JULY TERM, 1880.*

and the pipes pass with the house, because they are

necessary and appurtenant thereto.An appurtenant DELIVERY - WHAT DOES NOT CONSTITUTE

is that which belongs to another thing, but which has - A., being the owner of sixty acres

not belonged to it immemorially. 1 Ventris, 407; Coke of ungathered corn, and in debt to B. in a certain

on Litt. 121 b, and 122 a; Moore, 682. “ Appurtenant amount, and to L. in another sum, made an agreement denotes annexed or belonging to; but in law it denotes with them, by which he was to deliver to B., in satis

an annexation which is of convenience merely and not faction of his debt, 500 busbels of corn, the same to be of necessity, and which may have had its origin at any gathered by B., out of the said sixty acres, and a pair time, in both of which respects it is distinguished of mules upon which L. held a chattel mortgage, and from appendant.” Abb. L. Dict., “Appurtenance.” also to deliver to L., on the latter's farm, and to be An appurtenance may be annexed at any time. It is weighed on his scales, corn to the amount of $250, at

the nature and use of the thing annexed which makes the price of fifteen cents per bushel, and in the rise up

it appurtenant or not, as the case may be. Farmer v. to twenty cents per bushel, on the delivery of which

Ukiah Water Co. Opinion by Sharpstein, J. L. was to credit his claim against A. with $250, and to EVIDENCE release his lien upon the mules. There was no separa- GROSS NOT GOOD IF ANY OF TESTIMONY COMPETENT. tion of the corn, and it was estimated that there would Where a mass of evidence is offered as an entirety and be corn enough to satisfy the agreement with B. and part of it is competent and part incompetent, an obL., and also what A. should want for his own use. jection to it as an entirety should not be sustained. After some of the corn had been delivered to L. (but Upon this subject there is a conflict of opinion. In New how much is not shown), a constable, with an execu- York and Pennsylvania it has been held, that if an offer tion against A., levied upon thirty acres of standing contains any matter not admissible as evidence, the corn, being a part of the corp above mentioned, and of whole may be rejected. Hosley v. Black, 28 N. Y. 444; the value of $240. L. thereupon brought replevin, Gardner v. Barden, 34 id. 436; Wharton v. Douglass, 76 claiming to be the owner. Held, that upon the facts | Penn. St. 273. But in Alabama and Maryland, and in as stated, no delivery and no separation having been the Supreme Court of the United States, the contrary made, and both price and number of bushels as yet is held to be the moro correct rule. In Buffington v. unsettled, the title had not passed away from A., and Cook, 39 Ala. 66, a motion was made to exclude from L. could not maintain his action. Bailey v. Long. the jury all the indorsements on an execution; but a Opinion by Brewer, J.

part of them was legal evidence, and the court said: PARENT AND CHILD-STEP-CHILD. - It is well set- “Il a portion of the testimony was illegal, the court tled, that in the absence of statutes, a person is not

was not bound to separate the legal from the illegal entitled to the custody and earnings of step-children, evidence, but might properly overrule the whole monor bound by law to maintain them. Yet if a step

tion.” In Carroll's Lessee v. Granite Manufacturing father voluntarily assumes the care and support of a

Co., 11 Md. 403, and Curtis v. Moore, 20 id. 97, the rule step-child, he stands in loco parentis; and the pre

is thus declared: “When an offer is made of a mass of sumption is, that they deal with each other as parent evidence complex in its character, and the whole of it is and child, and not as master and servant; in which objected to in such case, if any part of it is admissible, case the ordinary rule of parent and child will be held it is error to exclude the whole.” In Moore v. Bank to apply, and neither compensation for board is pre

of the Metropolis, 13 Pet. 302, it is said: “It is the sumed on the one hand, nor for services on the other. duty of the party taking exceptions to the admissiSmith v. Rogers. Opinion by Valentine, J.

bility of evidence to point the part out excepted to, when the evidence consists of a number of particulars,

so that the attentiou of the court may be drawn to the CALIFORNIA SUPREME COURT ABSTRACT. particular objection. If the exception covers any ad

missible evidence, it is rightly overruled.” Board of SEPTEMBER, 1880.

Education v. Keenan. Opinion by McKee, J.; Mo

Kinstry, J., dissented.

RECEIVER -- WHERE MORTGAGE CONDITIONED THAT land with a dwelling-house and buildings thereon, MORTGAGEE MAY TAKE POSSESSION UPON DEFAULT, acquired by deed from defendant, a water company,

RECEIVER MAY BE APPOINTED IF DEFAULT OCCURS. — 80 much water as could be conveyed through a half

A mortgage given by a railroad company provided that inch pipe which tapped the pipes of defendant. By in case of default in the payment of the principal or

interest secured thereby, the mortgagees might take * To appear in 24 Kansas Reports.

possession of the mortgaged railroad. Held, that in case of such default a court having equity powers coupon is nothing but an acknowledgment of interest might appoint a receiver. In Shaw v. Norfolk County due, and is but an incident of the principal. It is R. Co., 5 Gray, 162, a railroad corporation conveyed all attached to the bond and may be detached from it for its property and franchises to three trustees, by deed, the convenience of the holder. The possession by the conditioned to be void on payment of certain bonds corporation is evidence of its payment. The bankingissued by the corporation, and stipulating that tho house at which it was made payable were the agents directors might, upon any breach of conditions, take of the corporation, and the holder could not lose in possession and apply the net proceeds to the purpose any event by its insolvency. Pennsylvania Supreme of the trust; and it was held that it was competent for Court, June 14, 1880. Williamsport Gas Co. v. Pinkera court of equity to appoint a receiver. In Shipley v. ton. Opinion per curiam. Atlantic & St. Lawrence R. Co., 55 Me. 395, a mortgage USURY COMPOUND INTEREST CONDITION FOR was executed by the railroad company to trustees, and it

ATTORNEY'S FEE. — (1) In the absence of evidence to was stipulated therein if the company should at any the contrary, the law will not presume that a contract time fail to pay the interest or principal of the bonds is usurious. Mills v. Johnson, 23 Tex. 329. (2) Comaccording to their tenor, the mortgagees might take the pound interest is not, of itself, usurious. Mills v. mortgaged property into their actual possession, man

Johnson, 23 Tex. 329; Louis v. Paschal, 37 id. 318; age and control the same, and apply the net income and

Miller v. Boles, 11 Conn. 495; Turuer v. Miller, 1 Eng. proceeds thereof to the payment of such interest and

(Ark.) 468; Wilcox v. Hawland, 3 Pick. 169; Brown v. principal. The court held that it had jurisdiction to

Brent, 1 Hen. & M. (Va.) 4. It is the usual practice decree a specific performance of the stipulation in the

with us to render judgment for the principal and inmortgaged property for the non-payment of the bonds.

terest then due, and this new principal to bear interest; In American Bridge Co. v. Heidelbach, 94 U. S. 798, a

this has been expressly decided not to be unlawful. company, to secure the payment of its bonds, mort- Frazier v. Campbell, 5 Tex. 275; Coles v. Kelsey, 13 id. gaged its property and the rents, issues, and profits 78. (3) If a contract is lawful in other respects a conarising therefrom, with the provision that if there was ditional stipulation to pay the usual attorneys fees, in default in paying the interest, the mortgagees might the event suit has to be instituted to enforce it, would take possession of the property, manage the same, and

be legal and founded upon a valuable consideration. receive and collect all rents and claims due and to be-Such fees, though not an element of damages in an come due to the company. The court said: “In this

ordinary suit for the collection of money, can be made case, upon the default which occurred, the mortgagees

such by express contract. Roberts v. Palmoro, 41 Tex. had the option to take personal possession of the mort

617. Texas Supreme Court, September, 1880. Miner gaged premises, or to file a bill, have a receiver ap

v. Paris Exchange Bank. Opinion by Bonner, J. pointed, and possession delivered to him. In either case the income would thereafter have been theirs." To the same effect are the text-books: “A court of

INSURANCE LAW. equity has jurisdiction to order a specific performance of a stipulation in a railroad 'mortgage authorizing the

LIFE POLICY - VESTED INTEREST OF BENEFICIARY trustees to take possession of the mortgaged property

IN. -S. took a life policy upon his life, by the terms of for the non-payment of the bonds secured, and a bill which the amount of insurance was made payable upon in equity is the proper form of proceeding to compel the death of S. to his wife F., and in case of her death the company and its agents to deliver possession to the before his decease, the same was to be paid to his chiltrustees." Jones on Railroad Sec., $ 401. Sacramento dren. The wife E. died intestate, during the life of S., & Placerville Railroad Co. v. Superior Court of San leaving two children, the fruit of her marriage. BeFrancisco. Opinion by Morrison, C. J.

fore her death, S. had paid and performed all that was stipulated to be done on his part in the contract of

insurance. S. remarried as a second wife L., by whom FINANCIAL LAW.

he had one child. He, after such marriage, surren.

dered the policy and took in its place a policy made COUPON BONDS — HOLDER NOT BOUND TO PRESENT payable to L. to her sole and separate use and benefit. COUPON WITHIN A REASONABLE TIME AFTER DUE. - This was done without consent of the children of S. Plaintiff below held a coupon bond issued by defend- Held, that the surrender by S. was without authority ant below, the Williamsport Gas Co. One of the and the children were not thereby deprived of their coupons read thus: “The Williamsport Gas Company rights under the original policy. Held, also, that his will pay the bearer, at the banking-house of Kirk, children included the issue by both marriages. The MacVeagh & Co., West Chester, Penn., on the first day general rule upon the subject, is this: "That a policy of December, 1875, twenty dollars, being six months' of life insurance, and the money to become due under interest on bond No. 18. $20. T. Coryell, Treasurer.' it, belong, the moment it is issued, to the person The firm of Kirk, MacVeagh & Co. was dissolved and named in it as beneficiary, and that there is no power succeeded by the Brandywine Bank, which occupied in the person procuring the insurance, by any act of the same place of business as the firm and retained his, by deed or by will, to transfer to any other person. many of its accounts, among others that of the inter- Tho person designated in the policy is the proper perest on the bond of plaintiff. On the 29th of November, son to receipt for and to sue for the money. The prin1875, the defendant remitted to the bank sufficient to ciple is that the rights under the policy become vested pay all of the coupons on its bonds, due on December 1, immediately upon its being issued, so that no person 1875. The bank paid all the coupons presented up to other than those designated in it can assign or surrenDecember 22, 1875, when it became insolvent. Plaintiff der it, and that in such assignment or surrender all the did not present his coupon above mentioned anywhere persons must concur, or the interest of those not confor payment until March 3, 1877, when ho presented it curring is not affected." Bliss on Life Ins. (2d ed.). to defendant. Held, that defendant was liable for the $S 317, 337. This is held to be the rule in Succession of amount of the coupon. The corporation which issues Kegler, 23 Lon. 550. The transaction on the part of S. a coupon bond is in the position of the maker of a was in the nature of an irrevocable and executed vol. promissory note, not of the drawer of a check or billuntary settlement upon his wife and children of the of exchange. There is no obligation on the holder to sum secured to be paid by the policy at his death, conpresent and demand it within a reasonable time. The ditioned that the same should be to her for her benefit same rule applies to the coupons just as long as he can should she survive him; but if not, then the same hold on to the bond without requiring payment. The should be paid to his children, or, if minors, to their



guardian, for their sole use and benefit. Nothing re- testament, is in the nature of a testament; and in mained to be done on his part to make the intended construing it, the courts should treat it, so far as posgift of the policy to the beneficiaries therein named sible, as a will; as, in so doing, they will more nearly complete and effectual as against himself and all mere approximate the intention of the person, the destinavolunteers claiming under him. In paying for the tion of whose bounty is involved in such cases. It is insurance and procuring the policy to be issued, pay-manifest, from the charter, a member of the company able, in express terms, upon his death, to his wife E., has no personal interest in his membership, and that if then living, and if not, to his children, for their sole his personal representative, as such, can never take use and benefit, without any condition or stipulation any interest in it after his death. This is shown by reserving a right to change or alter any of the terms the provision that if the member has no widow or of the agreement, he did all that could well be done, child surviving, and no will, the fund shall vest in the under the circumstances, in the execution of an inten- company; and the further provision that the proceeds tion to vest in his said appointees the entire interest of the membership shall not be liable for the debts of in the policy, and all rights thereunder. Adams v. the member. The charter gives a mere power of apBrackett's Ex'r, 5 Metc. 280; Laudrum v. Knowles, 22 pointment in case he has neither wife nor child, and N. J. Eq. 594. What he did was a clear and distinct he has no interest whatever in the fund, and it did not, act, wholly divesting himself of all ownership or con- therefore, pass under a will merely disposing of all trol over the money paid for the insurance, disclaiming estate, but in which no mention is made of the fund any interest in the policy, or intention to take or hold to arise fro his membership. 4 Kent, 327. (2) A stipit for himself or his legal representatives, at the same ulation in the certificate of membership was, “to pay time putting it beyond his power so to do by the stipu- to said Crofoot's daughters, Anna and Lou. Crofoot, lation obligating the company to pay the sum insured, or his assigns, or as he may direct by will," etc. Held whenever it should become due, to such of the persons invalid. It is not in the power of the company, or of named in the policy as might then be entitled thereto the member, or of both, to alter the rights of those by its terms. Taking the delivery of the policy from who by the charter are declared to be the beneficiaries, the company, under these circumstances, can only be except in the mode and to the extent therein indicated. construed as an act of acceptance for the designated Masonic Insurance Company v. Miller's Adm'r, 13 beneficiaries, and his subsequent holding of the same Bush, 494. Kentucky Court of Appeals, October 4, as that of a naked depositary, without any interest, 1880. Duvall v. Goodson. Opinion by Cofer, C. J, for those entitled thereto. Minnesota Supreme Court, September 24, 1880. Ricker v. Charter Oak Life Insur

CORRESPONDENCE. ance Co. Opinion by Cornell, J.

Editor of the Albany Law Journal:

Messrs. Banks & Brothers have published a sixth


edition of the Revised Statutes of the State of New CONSTRUED LIKE A WILL. — (1) The charter of a Ma- | York, edited by George W. Cothran, for which I, along sonic life insurance company provided for the raising with other members of the profession, pay twenty dolof a fund which should“ be paid for the benefit of lars. The first volume is prefaced with the Constituthe widow and children ” of deceased members, and tion of the United States. What purports to be the that “the fund created for the benefit of the widow thirteenth amendment to that instrument may be and children of deceased members shall be paid to found at page 32 of Vol. I, and it is given in the folthem by said company as soon as it can be collected, or lowing words: to their trustee, in the discretion of the company;

“ARTICLE XIII. subject, however, to be appropriated for their benefit,

“SECTION 1. Slavery, being incompatible with a free equally, according to the will of the deceased member; government, is forever prohibited in the United States, or if he should leave no widow or child, then to be and involuntary servitude shall be permitted only as a appropriated according to his will; or if he makes no punisbment for crime. will, or leaves no widow or child, it shall rest and re

“SEC. 2. Congress shall have power to enforce the main in the company, and be added to its capital stock, foregoing section of this article by appropriate legisor be appropriated as they may deem expedient.” C.,

The real thirteenth amendment to the Constitution at the time of his death, held a certificate of member

of the United States reads as follows: (R. S. U. S., 2d ship in the company. When he procured it he was a

ed., p. 30.) widower and had only two children. Both died during his life; one without issue and the other leaving

“SEC. 1. Neither slavery nor involuntary servitude, one child. C. left a will devising his residuary estate except as a punishment for crime, whereof the party

shall have been duly convicted, shall exist within the to his executor in trust, to be invested during the life

United States, or any place subject to their jurisdicof one of his children for her benefit, and after her tion. death to be disposed of as directed in the will. No "SEC. 2. Congress shall have power to enforce this mention was made of the insurance fund. Held, that article by appropriate legislation. D., the grandchild of C., was entitled to the fund, and Is it possible that Mr. Cothran, or the publishers, or not the executor. To the general rule that the word whoever else may be responsible, have taken the same "child” does not embrace a grandchild, there are two liberties with the statute laws of New York as he or exceptions. First, where a will or writing would they have taken with the Constitution of the United otherwise be inoperative, or the manifest intention States? or have they confined their attentions of this would be defeated; or second, when a will or writing character to the former instrument? shows by other words, that the word was not used in


Wu, L. ROYALL. its ordinary and proper sense, but in a more extended NEW YORK CITY, Dec. 1, 1880. sense. This case falls within the first exception. If it was held that it did not, then, when a member dies

SHADE TREES IN VILLAGE STREETS. intestate, and without wife or child, the proceeds of Editor of the Albany Law Journal: his membership are forfeited to the company, even The charter of an incorporated village gives the though he may leave lineal descendants surviving directors (trustees) power to lay out, alter, repair and No construction should be adopted which would lead improve the streets, highways, lanes and alleys within to such consequences. A life policy for the benefit of the bounds of said village, and to cause the same to be the family of the person procuring it. though not a guttered and curbed. A street in the village with the

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